Immigration Consequences of a Guilty Plea to a Nevada Crime Involving Violence or Threat of Violence

Author's Note: On April 17, 2018, the United States Supreme Court issued a decision in the case of Sessions v. Dimaya. The decision declared a subsection of the federal law provision relating to the definition of "crime of violence" to be void on the basis of being unconstitutionally vague. This article reflects the Court's holding in that case.

Non-citizens charged with a Nevada criminal offense can face deportation as the result of pleading guilty to a crime involving violence or a threat of violence, as well as other specific crimes. Especially in light of the Trump Administration’s stepped-up efforts relating to deportable offenses, vigorously defending against a Las Vegas criminal charge is imperative. In addition, plea negotiations on any criminal charge against a non-citizen must take into account potential immigration consequences.

If you are a non-citizen facing a criminal charge in Las Vegas, the only way to ensure that your rights and interests are protected in all regards — including possible immigration consequences — is to be represented by an experienced attorney who is knowledgeable about not only criminal law but also about immigration law. You can count on Las Vegas criminal defense attorney Joseph Gersten to aggressively defend you and fully consider and advise you of all the potential consequences of any plea or conviction, including those relating to U.S. immigration laws. At The Gersten Law Firm, your initial consultation is always free-of-charge.

How U.S. Immigration Law Applies to Nevada Criminal Charges

A federal law enacted in 1996, known as the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), provides for deportation of non-citizens convicted of certain criminal offenses in either federal or state court, including:

For purposes of the law, a conviction includes a formal judgment of guilt by a court or a plea of guilty or nolo contendere (no contest). For immigration purposes, a conviction is final after a non-citizen has been convicted and direct appeals have been exhausted. Importantly, having a record sealed under Nevada law does not erase a conviction for purposes of the immigration law.

Aggravated Felonies / Crimes Involving Violence or a Threat of Violence

The provision of federal law relating to aggravated felonies as a basis for deportation changed significantly on April 17, 2018, when the United States Supreme Court invalidated a subsection of the law defining crimes of violence as being unconstitutionally vague in rendering its decision in the case of Sessions v. Dimaya.

The definition of aggravated felony in federal law includes a crime of violence (COV). Prior to the Supreme Court's decision, the definition of a crime of violence included two different types of offenses:

  • Any offense that includes use, attempted use, or threatened use of physical force against a person or other person’s property (8 U.S.C. §16(a)); or
  • Any felony that by its nature involves a substantial risk that physical force may be used against a person or property in commission of the offense (8. U.S.C. §16(b)).

In the Dimaya decision, the Supreme Court invalidated only the second part of that provision, 8. U.S.C. §16(b). The first part of the definition of COV was not affected by the decision. While substantial questions exist about the impact of the Court's decision on pending cases, it is clear that new cases cannot be filed on the basis of a crime involving a substantial risk of physical force. However, new cases can still be filed for offenses that qualify under 8 U.S.C. §16(a) or as other specific offenses listed in the immigration law.

The characteristic that makes an offense a crime of violence is use of — or threatened use of — physical force. The force or threat of force also must be against another person or another person’s property. Using physical force against one’s own person or property does not satisfy the definition. Crimes of violence by definition are violent, active crimes. Generally, conduct that is only reckless or negligent likely will not constitute a crime of violence.

The potential impact of the Dimaya decision on pending cases is discussed in detail in a Harvard Law Review Blog post written on April 17, 2018, after the decision was issued by the Supreme Court.

Immigration Status and Deportation

If you are an immigrant, you can be deported for committing a crime of violence regardless of your immigration status — even if you have a green card or visa, you can still face deportation. If you are undocumented immigrant, your status as an illegal alien can directly affect deportation proceedings.

For undocumented aliens, even an arrest for a state criminal offense can attract the attention of the U.S. Department of Homeland Security’s Immigration and Customs Enforcement (ICE) or Customs and Border Protection (CPB) division. You can face an immigration detainer or an ICE hold. While the Las Vegas Metropolitan Police Department currently has a policy that limits Metro Police’s cooperation with federal agencies including ICE, the department does still share information about undocumented inmates with ICE. 

In addition, being convicted of any deportable offense can make you ineligible for programs like Deferred Action for Childhood Arrivals (DACA), which allows children of illegal immigrants —known as Dreamers — to remain here and be eligible for work authorization if they were under age sixteen (16) when their parents brought them to the U.S. and if they arrived by 2007.

For Immigrants Arrested in Las Vegas

Whether you are legal or undocumented, if you are an immigrant arrested in Las Vegas, retaining experienced immigration criminal defense counsel is essential. On arrest, you have constitutional rights, including the right to remain silent and have a lawyer. You should exercise those rights immediately. Remember that despite being charged with a criminal offense, you are innocent until proven guilty.

As a non-citizen, you face issues with both immigration laws and with Nevada state criminal laws. Talking with a lawyer at the earliest possible time is important. With a skilled attorney by your side, it is possible that the charges could be disproved and dropped. If plea negotiations with prosecutors occur, the full implications of immigration law must be taken into account.

For Immigrants Convicted of a Criminal Offense in Nevada

If you've been charged with a Nevada criminal offense, and you enter a plea of guilty or a plea of nolo contendere (no contest), your conviction is final for immigration law purposes as soon as you enter the plea. If you are convicted by a judge or jury, the conviction is final after your direct appeals are exhausted.

Even if you have entered a plea or been convicted and exhausted your appeals, post conviction relief may be available. In some cases, you may be able to avoid deportation. Post conviction proceedings that may be available, depending on the circumstances, include:

  • Motion for a new trial;
  • Motion to withdraw a guilty plea;
  • Writ of habeas corpus;
  • Writ of coram nobis;
  • Federal motion to vacate, set aside, or correct sentence (2225 motion).

Attorney Joseph Gersten's criminal defense practice includes representing clients in the full range of appeals and post conviction proceedings. If you've already entered a plea or been convicted, The Gersten Law Firm may still be able to help.

Talk With a Las Vegas Immigration Criminal Defense Attorney

Attorney Joseph Gersten has extensive experience as a criminal defense attorney in both federal and state courts. He draws on his litigation background as well as his work as an investigator for the United States Secret Service, Intelligence Division, and the United States Food and Drug Administration’s Office of Criminal Investigations. In defending you against Nevada criminal charges, Attorney Gersten will vigorously protect your rights and interests relating to federal immigration issues as well as federal and state criminal statutes.

Las Vegas criminal defense attorney Joseph Gersten has extensive experience defending Las Vegas visitors and residents facing federal and state criminal charges with immigration consequences. If you’ve been arrested in Las Vegas or anywhere else in Clark County, contact Attorney Gersten to schedule a free consultation.